Fleming v. Chicago Bridge & Iron Company (Delaware), No. 2:2011cv00194 - Document 18 (E.D. Tex. 2012)
Court Description: MEMORANDUM OPINION and ORDER Setting Hearing on Motion 6 MOTION to Dismiss for Lack of Jurisdiction and Brief In Support :( Motion Hearing set for 6/26/2012 09:00 AM in Mag Ctrm (Marshall) before Magistrate Judge Roy S Payne.) Plaintiff will be allowed 60 additional days in which to conduct any discovery relevant to diversity and federal question jurisdiction. Any further motion to amend the Complaint, and any additional opposition to the Motion to Dismiss shall be filed by May 30, 2012. Defendants may file any reply brief in support of their motion by June 15, 2012. Motions terminated: 10 MOTION to Amend/Correct 1 Complaint filed by Erik Fleming.. Signed by Magistrate Judge Roy S Payne on 3/15/12. (ehs, )
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT COURT MARSHALL DIVISION ERIK FLEMING, Plaintiff, v. CHICAGO BRIDGE & IRON COMPANY (DELAWARE) Defendant. § § § § § § § § § § CASE NO. 2:11-CV-194-JRG-RSP MEMORANDUM ORDER Currently before the Court is Plaintiff s Motion to Amend (Dkt. 10), filed on May 30, 2011. Plaintiff seeks to amend to allege diversity jurisdiction. Defendant counters that the parties are not diverse, and attaches an affidavit showing that the defendant s nerve center is in Texas (the domicile of plaintiff) and thus diversity is lacking under the Supreme Court s recent decision in Hertz Corporation v. Friend, 130 S.Ct. 1181 (2010). Plaintiff s proposed Amended Complaint does not allege the nerve center or principal place of business of the defendant. Also before the Court is Defendant s Motion to Dismiss (Dkt. 6) under Rule 12(b)(1) for lack of subject matter jurisdiction. Defendant attaches evidence designed to show that the plans on which plaintiff bases his claims are not covered by ERISA. Plaintiff s response represents that he has not had an adequate opportunity to make discovery on these issues. The Motion to Amend is DENIED, as the Court finds that plaintiff does not properly allege the facts necessary to support diversity jurisdiction. However, plaintiff will be allowed 60 additional days in which to conduct any discovery relevant to diversity and federal question jurisdiction. Any further motion to amend the Complaint, and any additional opposition to the Motion to Dismiss shall be filed by May 30, 2012. Defendants may file any reply brief in support of their motion by June 15, 2012. The Motion to Dismiss (Dkt. 6) is set for hearing in Open Court before the undersigned on June 26, 2012 at 9:00 a.m. SIGNED this 3rd day of January, 2012. SIGNED this 15th day of March, 2012. ____________________________________ ROY S. PAYNE UNITED STATES MAGISTRATE JUDGE
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